Citation Nr: 1205780
Decision Date: 02/15/12 Archive Date: 02/23/12
DOCKET NO. 06-23 003 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas
THE ISSUE
Entitlement to a rating higher than 30 percent prior to September 27, 2006; higher than 60 percent from September 27, 2006 to June 30, 2009; and higher than 30 percent on and after July 1, 2009, for service-connected asthma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
C. L. Wasser, Counsel
INTRODUCTION
The Veteran served on active duty from September 1989 to September 1998. This case comes to the Board of Veterans' Appeals (Board) on appeal from May 2005, December 2006, December 2008, and March 2009 rating decisions of the RO in Waco, Texas.
In July 2010, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is in the claims file.
As noted in the Board's April 2011 remand, in correspondence dated in April 2008 the Veteran contended that the RO had committed clear and unmistakable error (CUE) in its February 1999 rating decision by granting less than a 100 percent rating for his service-connected asthma disability. This issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), is once again referred to the AOJ for appropriate action.
The issue of service connection for a right hip disability has been raised by the record (see the Veteran's October 2010 claim), but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is also referred to the AOJ for appropriate action.
The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
Regrettably, additional development is required prior to appellate review of the appeal for an increased rating for service-connected asthma.
A Court or Board remand confers upon the appellant the right to compliance with that order. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In an April 2011 decision, the Board remanded the issue of entitlement to an increased rating for asthma to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. Some development was completed, and the case was subsequently returned to the Board. Unfortunately, there was not adequate compliance with the remand directives, so another remand is required.
Historically, in an unappealed February 1999 rating decision, the RO granted service connection and a 30 percent rating for asthma, effective September 19, 1998, the day after the Veteran's separation from service. In February 2005, the Veteran filed a claim for an increased rating for service-connected asthma. In a May 2005 rating decision, the RO denied an increase in the 30 percent rating, and the instant appeal ensued. In a December 2006 rating decision, the RO granted a 60 percent rating for asthma, effective from September 27, 2006. In a December 2008 rating decision, the RO determined that there was CUE in the December 2006 rating decision, and proposed a reduction of the 60 percent rating to 30 percent. In a March 2009 rating decision, the RO effectuated the reduction of the asthma disability rating from 60 percent to 30 percent, effective July 1, 2009.
The Board's April 2011 remand noted that in April 2008 correspondence the Veteran contended that the RO's failure to assign a 100 percent evaluation for asthma beginning in 1998 was CUE. The Veteran contended that a 100 percent rating for asthma should be awarded retroactively from September 1998. The Board thus referred the claim of CUE in a February 1999 decision to the RO for initial adjudication, finding that it was inextricably intertwined with the Veteran's current appeal for an increased rating for his service-connected asthma disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The Board also noted in remand directive #4 that the AMC was to readjudicate the claim on appeal after the claim of CUE in the February 1999 rating decision was developed and adjudicated.
However, a review of the Veteran's claims file and the virtual VA claims file shows that the AMC has not yet adjudicated the Veteran's claim of CUE in a February 1999 rating decision. Accordingly, review by the Board of the issue of entitlement to an increased rating for the Veteran's service-connected asthma is again remanded pending adjudication of the Veteran's April 2008 CUE claim.
The Board notes that any claim regarding CUE in the RO's May 2005, December 2006, December 2008, and March 2009 decisions is premature. This is because those rating decisions have not become final as they are currently on appeal. See 38 U.S.C.A. § 7105 (West 2002) (providing that a decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision); 38 U.S.C.A. § 5109A (West 2002) (providing that VA rating decisions which are not timely appealed are considered final and binding in the absence of a showing of CUE).
Accordingly, the case is REMANDED for the following action:
1. Develop and adjudicate the Veteran's claim of CUE in the February 1999 rating decision that did not award a 100 percent rating for service-connected asthma.
2. After all such development and adjudication has occurred, readjudicate the Veteran's claim for an increased evaluation for his service-connected asthma disability. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).